M. NAEEMULLAH KHAN SHERWANI, J.---The way in which this appeal arises is this Muhammad Aamer Abbas, Muhammad Ilyas, Muhammad Nawaz sons of Bashir Ahmad and Muhammad Ashfaq son of Muhammad Siddique were tried by a learned Additional Sessions Judge at Faisalabad for the murder of Muhammad Saeed, brother of Muhammad Aslam complainant. By virtue of his judgment dated 4-6-1996, the learned trial Judge found Muhammad Aamer Abbas and Muhammad Ilyas guilty of the said charge, convicted them under section 302(b). P.P.C. and punished Muhammad Aamer Abbas with death and Muhammad Ilyas with imprisonment for life.
2. Murder Reference No,83 of 1996 seeks confirmation of said sentence of death awarded to Muhammad Aamer Abbas convict whereas he and Muhammad Ilyas convict by filing Criminal Appeal No,508 of 1996 have impugned conviction and sentence passed against them by the said learned Judge. Both these matters are being disposed of together through this single judgment.
3. Occurrence of the alleged incident took place on 10-4-1995 at 9.30 p.m. in the area of Tangey Wala Chowk Islam Nagar situate at a distance of two and a half kilometers from Police Station Civil Lines, Faisalabad. The said occurrence was reported by Muhammad Aslam complainant (P.W.12), brother of the deceased, on the same day at 10-45 p.m. through a written application (Exh.P.C.) to Muhammad Shaukat, S.I. (P.W.16) who was available at Stadium Road, Faisalabad. The said S.I. despatched the same to the police station for formal registration of a case. Consequent upon receipt thereof Ghulam Rasool, M.H.C. (P.W.2) drew up F.I.R. (Exh. PC/1) at 10-50 p.m. on the same day, without any addition or subtraction on his part.
4. Muhammad Aslam complainant (P.W.12) expounded the following version:-- He is resident of Mohalla Islam Nagar and works in Power Looms. On 10-4-1995 at 9-30 p.m. he alongwith his brother Muhammad Saeed, Asghar Ali and Muhammad Siddique was coming out of Haji Saeed Hotel after taking tea. Aamir, Muhammad Nawaz alias Mithu armed with daggers, Muhammad Ilyas armed with a Chhuri and Muhammad Ashfaq alias Budda armed with a knife were found standing Chowk Tangianwala waiting their arrival. Muhammad Ilyas exhorted a Lalkara to the effect that Muhammad Saeed be not spared. All the accused launched an attack on Muhammad Saeed. Aamer inflicted a dagger blow which landed on left upper side of his abdomen. Muhammad Nawaz gave a blow with his dagger striking at left upper part of his abdomen. Third blow of Churn delivered by Muhammad Ilyas struck below his umbilicus.
Muhammad Ashfaq delivered a knife blow which hit middle of his chest. Muhammad Saeed fell prone. All the accused inflicted more injuries when Muhammad Saeed was lying on the ground. The accused openly pronounced if anybody drew near them, he would be killed. He, Asghar Ali and Muhammad Siddique could not rescue Muhammad Saeed from clutches of the accused.
Muhammad Saeed succumbed to his injuries at the spot. The accused levanted from the spot while raising Lalkaras.
Motive behind the outbreak of this incident was that there was a money dispute between the accused and Muhammad Saeed. Muhammad Riaz son of Muhammad Rafique and Muhammad Riaz alias Toti settled the matter for the time being. All the accused in furtherance ' of their common intention committed mactation of Muhammad Saeed due to this reason.
5. Now the vital interest of the police was to reach the spot to despatch the dead body to the 'mortuary for autopsy purpose, collect other important evidence from the spot and apprehend the accused as early as possible. Muhammad Shaukat, S.I. (P.W.16) forthwith set at the most difficult task of investigation. After despatching the application (Exh. P.C.) to the police station for formal registration of a case, he rushed to the place of occurrence and carried out spot inspection, prepared rough site-plan (Exh. P. K) of the place of occurrence. He also drew up injury statement (Exh. P.G), inquest report (Exh.P.H) and despatched the dead body to the mortuary for post-mortem examination under the escort of Khadim Hussain, Constable. He collected blood-stained soil, made the same into a sealed parcel and prepared seizure memo (Exh. PJ). After post-mortem examination Khadim Husssa in constable produced before him last-worn clothes of the deceased i,e, Shalwar P.1., Shirt P.2, Bunyan P.3 which were taken into possession by him vide memo. (Exh. PD).
On 20-4-1995 he arrested Muhammad Aamer Abbas and Muhammad Ashfaq accused. On 24-4- 1995 Aamer Abbas accused led to the recovery of dagger (P.4) which was taken into possession by him through seizure memo. (Exh.P.F) duly attested by Muhammad Saleem (P.W.5) and Muhammad Nawaz (P.W.7). Statements of all the relevant witnesses were recorded. After completion of investigation report under section 173; Cr. P . C . was prepared.
6. Challan was submitted before the Court. The learned trial Judge took cognizance of the case on receipt thereof. After observing all the legal formalities charge against the accused was framed and put to them. They emphatically denied correctness of the allegations and claimed to be tried.
Prosecution was forthwith directed to produce evidence of its choice to bring home guilt to the accused. Prosecution ventured to produce as many as sixteen witnesses in all.
7. As the occurrence stood admitted by Muhammad Aamer Abbas accused, although in a different manner, so statements of the prosecution witnesses and that of Muhammad Aamer Abbas appellant will be discussed together 'during appraisal of evidence. Learned Prosecutor after tendering in evidence reports of Chemical Examiner (Exhs. P.M, P.N), and that of Serologist (Exh. P.0) declared the prosecution case close.
8. Trial had now shifted to the next crucial stage, which pertains to examination of accused under section 342, Cr.P.C. All the incriminating evidence was brought to their notice to enable them to understand it and to offer handsome explanation with regard to the crime imputed to them.
Muhammad Ilyas. Muhammad Nawaz and Muhammad Ashfaq accused professed their profound innocence in the matter and alleged their false involvement in this false case. Muhammad Aamer Abbas appellant admitted the 'occurrence but in a different manner. They opted not to make statements on oath in disproof of accusations brought against them as envisaged by the relevant provisions of section 340(2), Cr.P.C. They produced Ghulam Abbas (D.W.1) in their defence.
9. Learned counsel for both the sides addressed their arguments, which were duly considered by the learned , trial Judge. He delivered verdict' of guilt against the appellants and punished them as aforementioned.
10.Learned counsel for the appellants submits that Muhammad Aamer Abbas appellant suffered an injury on his head at the hands of the deceased and for that reason he or his brothers were fully entitled to the exercise of right of self-defence, that there is total suppression of his injury not only in the F.I.R. but also in the statements of witnesses, that defence version was nearer to truth which was adopted by the appellant at the very out set: that deceased used to tease his sister and he was admonished many a time but he did not give up his dirty habits; that it was he who launched an attack on the appellant by means of a Sota and he was saved by his brother Riaz who was not cited as an accused by who complainant side: that the defence plea has not been appreciated in its true perspective; that Muhammad Nawaz, Muhammad Ilyas and Muhammad Ashfaq were not found involved in the occurrence and the Investigating Agency got them discharged from a Court of competent jurisdiction and this circumstance strikes at the very root of the case; that motive suggested by prosecution was not proved; that complainant side had not approached with clean hands by throwing the net too wide to implicate as many as innocent persons as , possible; that Muhammad Aslam (P.W. 12) and Muhammad Siddique. (P.W.13) have not given a correct version of the occurrence and as such they are not reliable witnesses; that according to school leaving certificate (Exh.D.C) date of birth of Muhammad Aamer Abbas appellant was 12-1-1978, so during the days of occurrence his age was seventeen years and two months and he was wrongly convicted under section 302(b), P.P.C.
11.On the contrary, learned counsel for the State submits that occurrence is admitted; Muhammad Aamer Abbas appellant cannot he treated as a minor on the strength of school leaving certificate (Exh. D.C) because it was plainly inadmissible in evidence; that it is correct that Muhammad Ilyas, Muhammad Nawaz and Ashfaq were found innocent by the police and were got discharged from a Court of competent jurisdiction and that defence version is false because Mst. Shazia was never produced before the Investigating Agency. He supports judgment of the trial Court.
12. We have attentively head and soberly considered respective arguments of both the sides.
Now we would like to critically analyze evidence of both the sides to ascertain truth behind the matter. Muhammad Aslam (P.W. 12) and Asghar Ali (not produced) happen to be first cousins inter se. Muhammad Siddique (P.W. 13) is not related to them. He is resident of Sireet No,1 which is at a distance of half a mile from the place of occurtence. Defence has suggested that he is a friend of the complainant side and for that reason offered himself to become a witness in this case though he was not available at the spot. Reason for being present at the place of occurrence was that he had come to Haji Saeed Hotel to take tea. Occurrence took place in the month of. April, 1995 at 9-30 p.m. We do not believe that in the month of April one would cover this much distance just to take tea and nothing beyond that. He could have tea in his house. Likewise we entertain serious doubts about the presence of Muhammad Aslam (P.W. 12) and Asghar Ali P.W. at the spot for' the reason that they depicted a strange conduct and behaviour at the place of occurrence during course of incident and even afterwards. Both these witnesses neither intervened during the occurrence nor intercepted the attackers in any way to frustrate their attempt to inflict injuries on the deceased.
They calmly watched the occurrence as they had no concern with the deceased. They even did not send an information to the inmates of their house about this occurrence. They have specifically stated that deceased received eight injuries. According to medical evidence there are eight injuries. Two are incised wounds and two are stab wounds. They have been caused by the use of a sharp-edged weapon. Injuries Nos, 1, 2, 4 and 5 are abrasions. Abrasions are injuries involving loss of superficial epithelial lair. of skin and are caused by friction against hard and a rough surface, by nail scratches or by a blunt weapon. There is positive opinion of the Doctor that four injuries were caused by the use of a blunt weapon. These injuries do not find mentioned in the F.I.R. No witness ever pointed out as to who caused these injuries and by what means. Even the Investigating Officer did not seek explanation from the witnesses pertaining to the injuries. In our view that there is inconsistency between the ocular account and the medical evidence. Statement of Muhammad Siddique (P.W. 13) is dated 11-4-1995 and not 10-4-1995. This witness during course of examination brought about various changes in his statement for which he was got confronted with his statement under section 161, Cr.P.C. (Exh.D.A). This exercise was undertaken by him to conceal his friendly relations with the complainant side. According to this witness occurrence lasted for about fifteen minutes. None of the witnesses or other persons present there made an effort to rescue the deceased or apprehend the assailants. In our view this occurrence could not have lasted for more than a minute or two. Muhammad Aslam (P.W. 12) stated that when Muhammad Saeed had fallen, the accused were inflicting blows on him. This witness admits that Muhammad Saeed also took tea with them. Both these witnesses stated that many persons had seen the occurrence but strangely enough none of them was either examined or cited as a witness by the police. Muhammad Siddique (P.W. 13) never disclosed as to how he knew the accused and since when. It is a sheer coincide that they all went to same hotel just for taking tea. We are not inclined to believe their presence at the spot.
13. The Investigating Officer who had a chance to collect the first hand information from the witnesses tested the veracity of their statements and came to the conclusion that Muhammad Nawaz, Muhammad Ilyas and Muhammad Ashfaq were neither present at the spot nor had taken part in the incident. They also came to the conclusion that the deceased was not behaving properly with sister of the appellants. He used to tease her and was forbidden by his brother. Earlier to the incident a quarrel had ensued in between the two sides and was beaten up by them. The appellant and his brother did their best to discourage his pursuits of evil doing but the deceased did not budge an inch. Teasing school going girls by youngsters has become dangerously frequent in our society. It has come up like a big problem and many incidents had taken place because of this reason. It seems true that because of earlier quarrel, deceased was offended and assaulted Muhammad Aamer Abbas appellant by delivering a Sota blow on his head. Muhammad Aamer Abbas appellant cried for help which attracted his brother Riaz. Muhammad Aamer appellant snatched. Sofa and Riaz picked up a Churn from a nearby Rehri and inflicted injuries with the same.. The availability of Rehries of fruit vendors is an admitted fact. The appellant has categorically stated that his co-accused namely Muhammad Nawaz, Muhammad Ilyas and Muhammad Ashfaq were not available at the spot. They were got discharged by the police. Version put forth by Muhammad Aamer Abbas appellant is not afterthought one. It was adopted by him at the very beginning. Muhammad Aamer Abbas appellant was medically examined by the Doctor who disclosed a blunt weapon injury on the back of his head. This injury is not explained anywhere by the prosecution. Its duration tallies with the date and time of occurrence. Version of the appellant finds support from the statement of D.W.
1. One thing with which we are impressed is that the complainant side did not show their dis-satisfaction with the manner and mode of investigation. They made no complaint against the investigators. They also did not file appeal against acquittal of Muhammad Nawaz and Muhammad Ashfaq co-accused. Meaning thereby that they were fully conscious of shortcomings of their case.
14. It may be seen here that Muhammad Ilyas appellant was given clean slate by the investigators which is now amply proved by the statement of Ghulam Abbas, S.I. (D.W.1) Muhammad Nawaz and Muhammad Ashfaq with similar allegations had earned acquittal from the trial Court. Even Muhammad Aamer Abbas appellant excluded his presence at the spot during the occurrence.
When prosecution itself says that he was not found guilty, we feel more inclined to give him the benefit of the doubt. It is better for the Judge to err in acquittal than in conviction. By extending benefit of doubt to Muhammad Ilyas, we acquit him of the charge and direct that he be released from custody if not required to be detained in any other case.
15. As regards age of Muhammad Aamer appellant we are not inclined to consider (Exh.DC) because this was not duly proved and is inadmissible in evidence keeping in view the authority of a decided case reported in PLD 1976 SC 568 Muhammad Afzal v. State. We also do not accept the statement of Muhammad Riaz (P.W. 14) as true. He appears to be a made up witness. In our view Muhammad Aamer appellant exceeded the exercise of right of self-defence to the maximum extent. He was driven to this situation by the constant obnoxious behaviour of the deceased and for that reason we hold that his j conviction under section 302(b), P.P.C. is not proper. We convert it under section 302(c), P.P.C. and award him rigorous imprisonment for twenty five years. Benefit of section 382-B, Cr.P.C. is also extended to him. Death sentence is not confirmed and murder reference is answered in the negative.